Immigration lawyers try to make a distinction between "entering" and being "unlawfully present." It's hard to prove that someone "entered" unless you see them do it, or otherwise have some solid evidence. They would say that someone who does not have "lawful presence" would only have circumstancial evidence that they entered. And then the burden would still be to prove that they are here unlawfully, since the state still has the burden of proof. Tricky, I know. So maybe it is a good thing that immigration courts operate independent of the regular judiciary, and there may be a legal point that initial unlawful presence is only a civil act.

It's a mess I know. I think it's good that these courts operate on as much common sense as they do.